Biden Declares ERA ‘Law of the Land,’ Yet Ambiguities Surround Future Actions

Activists advocate for the ratification of the equal rights amendment at a Sept. 28, 2022 demonstration in Washington, D.C.

Jose Luis Magana/AP

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Jose Luis Magana/AP

On Friday, President Biden asserted that he views the Equal Rights Amendment to the Constitution as “the law of the land,” an unexpected assertion that lacks formal enforceability, but is being praised by its supporters, who intend to assemble today in front of the National Archives.

The amendment must receive official publication or certification from the National Archivist, Colleen Shogan—when or if that will transpire remains unclear.

The executive branch does not have a direct role in the amendment procedure, and Biden is not set to instruct the archivist to certify and publish the ERA, the White House informed reporters during a conference call. A senior administration figure remarked that the archivist’s duty is “purely ministerial” in nature, implying that the archivist is obligated to publish the amendment following its ratification.

The amendment from the 1970s passed by Congress would ensure that men and women have equal rights under the law, yet it wasn’t until 2020 that sufficient state legislatures ratified it, significantly missing a deadline established by Congress. Advocates for the ERA contend that the deadline does not carry binding authority since it appeared in the preamble of the amendment, rather than in the amendment’s actual text.

On Friday, Biden expressed his belief that the ERA had surpassed the threshold to be included as the 28th Amendment to the Constitution when Virginia ratified it five years prior. He did not clarify why he delayed taking action until the final days of his presidency.

“It is long overdue to acknowledge the desires of the American people. Upholding my oath and commitment to the Constitution and the nation, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, ensuring all Americans equal rights and protections under the law irrespective of their gender,” Biden stated in a concise written statement.

His action follows a campaign by Democratic lawmakers, including Sen. Kirsten Gillibrand, D-N.Y., who has indicated that it would serve as a way to safeguard abortion rights. Gillibrand anticipates that this issue could be addressed by the Supreme Court.

This topic has been a longstanding subject of legal contention. In 2020, the National Archivist—whose role involves making constitutional amendments official—chose not to certify the amendment, citing an opinion from the Justice Department’s Office of Legal Counsel. The department asserted that it considered the ERA to have expired after a ratification deadline in 1982 was not met. In 2022, the Office of Legal Counsel issued an opinion reaffirming that decision from 2020.

Shogan, a Biden appointee and the inaugural female archivist, stated during her confirmation hearing in 2022 that she would adhere to the Office of Legal Counsel’s opinion, which declared that the ERA’s future would be determined by courts or Congress. Last month, Shogan reiterated that Congress and the courts would need to initiate further actions to remove the deadline for the amendment to be ratified—asserting that they could not legally certify and publish the ERA.